Volokh Conspiracy, a blog written mostly by law professors, is anchored by Eugene Volokh. Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
In the Teleforum, Ilya Shapiro agree on most of the questions at issue in the Trump executive order and Sessions law enforcement grant conditions cases, but differ on two of the three issues raised by the California sanctuary state case.
Because this event included both Ilya Shapiro and myself, there is a risk that it will exacerbate the already serious problem of #IlyaConfusion. Fortunately, I have created this definitive guide to telling the two libertarian Ilyas apart.
Lt. Gov. Cyrus Habib did not preside at the governor's address to a joint session of the Legislature on Tuesday because he felt vulnerable in the House chamber, where people can carry concealed weapons in the public galleries.
"There is no specific threat to me. There is no specific threat we know of, period," he said before the governor's speech. "It's about the policy."
But, wait: Washington lets people who have concealed carry licenses carry in most public places, such as sidewalks, parks, and the like. That's the policy in about 40 states (including the several that don't even require a license to carry in public). Indeed, Washington has apparently had this "shall-issue" policy since 1961, well before most states shifted to it. Maybe the Lieutenant Governor should continue his political career in a state where he will feel less "vulnerable."
Federal law requires brewers to get pre-approval for their beer bottle labels, apparently in order to avoid "various false, misleading, obscene, or misleading statements, and the disparagement of competitors' products." But though the pre-approval generally comes within three weeks, it's now on hold because of the government shutdown. The motion for a preliminary injunction in Atlas Brew Works, LLC v. Whitaker (D.D.C. filed Jan. 15, 2019) argues that this violates the First Amendment. (The case is being litigated by Alan Gura, who is famous mostly for his Second Amendment cases, but who handles many First Amendment ones as well.) An excerpt:
Americans' fundamental right to free speech requires no Congressional authorization. The government can shut down speech regulators. It cannot shut down the First Amendment. The lack of political will to operate what might be a valid restriction on protected speech is the government's problem, not a speaker's. The Framers would have recoiled at the notion that anyone would fear criminal prosecution for speaking, merely because Congress has not enacted a bill funding the operation of a content-based prior restraint on their speech.
Yet such is the predicament facing Washington, D.C.'s Atlas Brew Works. Atlas, a neighborhood production craft brewer, sits on forty barrels of The Precious One—a perishable, seasonal apricot-infused India pale ale that Atlas cannot label for interstate shipment. The federal government stands ready to prosecute Atlas should it ship The Precious One, because it has not approved the content of that beer's keg label. On the other hand, for lack of Congressional appropriation, the government cannot review Atlas's application for label approval. And this is not Atlas's only label pending approval. Atlas must be able to continue publishing new labels to remain in business. As the government would have it, however, prosecuting Atlas for speaking without a license is "essential." The processing of Atlas's request for permission to speak, not so much.
The situation is unacceptable. This Court may be unable to solve the political branches' budgetary standoff, but it remains in the business of securing fundamental rights. The bottom line is that Atlas suffers a categorical prohibition of its constitutionally-protected speech, as well as an indefinite content-based prior restraint on that speech. The Court should immediately enjoin the government from requiring that Atlas obtain a legally-unavailable license to exercise fundamental First Amendment speech rights....
The First Amendment secures the right to publish beer labels. At least in part, beer labels come within the First Amendment's protection because "information on beer labels constitutes commercial speech." Rubin v. Coors Brewing Co., 514 U.S. 476, 481 (1995). "The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish ... even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment." Edenfield v. Fane, 507 U.S. 761, 767 (1993).
Atlas's consumers share the brewer's First Amendment interest in its beer labels. "If there is a right to advertise, there is a reciprocal right to receive the advertising ...." Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 757 (1976) (footnote omitted). "[That] interest is substantial: the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue." Bates v. State Bar of Ariz., 433 U.S. 350, 364 (1977). Doubtless many consumers would prefer using Atlas's beer labels than listening to federal budget debates. The two activities might even have a symbiotic relationship.
This is not to suggest that the government may not regulate beer labels. But as precedent condemning beer label censorship attests, such regulations must meet First Amendment standards. See Rubin, supra, 514 U.S. 476; Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998); Flying Dog Brewery, LLLP v. Mich. Liquor Control Comm'n, 597 Fed. Appx. 342 (6th Cir. 2015); Hornell Brewing Co. v. Brady, 819 F. Supp. 1227 (E.D.N.Y. 1993).
At least for now and for the foreseeable future, the COLA requirement's application to Atlas's beer labels cannot survive First Amendment scrutiny.... TTB's now-conceptual, inoperative licensing mechanism is irrelevant. Indeed, the licensing of Atlas's speech is itself a constitutional impossibility .... When an administrative process exists by which people may obtain relief from a prohibition, but Congress has not appropriated money to fund that process, the underlying prohibition is subject to constitutional challenge. See Schrader v. Holder, 704 F.3d 980, 992 (D.C. Cir. 2013) ("[w]ithout the relief authorized by [18 U.S.C. §] 925(c), the federal firearms ban will remain vulnerable to a properly raised as-applied constitutional challenge")....
"Traditionally, First Amendment questions arising in the arena of 'commercial speech' have occasioned scrutiny under the standard of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980)." "Under Central Hudson, protected speech may be regulated if the governmental interest is 'substantial.' Any such regulation must 'directly advance the governmental interest asserted.' When analyzing this requirement, the Supreme Court 'has commonly required evidence of a measure's effectiveness.' Finally, any regulation cannot be 'more extensive than is necessary to serve that interest,' a standard the government cannot satisfy 'if it presents no evidence that less restrictive means would fail.'" ...
The government cannot argue that the current state of affairs reflects considered legislative judgment to advance any regulatory interest. When Congress enacted the FAA Act in 1935, it apparently assumed that someone would administer it. The FAA Act's licensing guidelines, and those found in the TTB's regulations, reflect the government's position in weighing the interests at stake. These do not prescribe a categorical prohibition, which went into effect as an unintended consequence of a political dispute wholly unrelated to beer labels. Atlas suffers from a prohibition of its protected First Amendment speech unsupported by any regulatory concerns about that speech....
Whatever the government's concerns with beer labels, those concerns led it to regulate, not to prohibit. No "careful calculation" supports the current prohibition on the publication of Atlas's beer labels in interstate commerce. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), is instructive. In that case, the Supreme Court accepted that the government has a substantial interest in preventing underage tobacco use, "but it is no less true that the sale and use of tobacco products by adults is a legal activity." In considering the constitutionality of restrictions on outdoor tobacco advertising, the Court offered, "[w]e must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products." Id. The state lost. "The breadth and scope of the regulations, and the process by which the Attorney General adopted the regulations, do not demonstrate a careful calculation of the speech interests involved." Id. at 562.
Even if government were permitted to conjure an interest in support of the present prohibition on beer label speech, that prohibition would only be "another case of 'burn[ing] the house to roast the pig.'" Sable Commc's of Cal., Inc. v. FCC, 492 U.S. 115, 131(1989) (quoting Butler v. Michigan, 352 U.S. 380, 383 (1957)). "[A] speech regulation cannot unduly impinge on the speaker's ability to propose a commercial transaction and the adult listener's opportunity to obtain information about products." Lorillard, 533 U.S. at 565. The current prohibition bars Atlas from offering The Precious One on tap outside the District of Columbia, makes it impossible for Atlas to sell any of its planned new beers, and prevents Atlas from updating the labels for existing products. Regardless of the government's supposed regulatory interest, this prohibition goes too far....
Central Hudson left open the question of whether traditional prior restraint doctrine applies to commercial speech, suggesting in dicta that it "may not apply." Central Hudson, 447 U.S. at 571 n.13. The D.C. Circuit has held the question open as well, Pearson v. Shalala, 164 F.3d 650, 660 (D.C. Cir. 1999), but courts tend to apply the prior restraint doctrine to commercial speech. "[T]he prior restraint doctrine does play a role in evaluating the regulation of commercial speech." Nutritional Health Alliance v. Shalala, 144 F.3d 220, 227 (2d Cir. 1998); Desert Outdoor Advertising v. City of Moreno Valley, 103 F.3d 814, 818-19 (9th Cir. 1996) (striking down prior restraint on commercial billboards); In re Search of Kitty's East, 905 F.2d 1367, 1371 (10th Cir. 1990); but see Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 532-33 (6th Cir. 2012). The Fourth Circuit recently upheld a prior restraint on commercial speech not because the speech was commercial in nature, but because it was "likely false or misleading." Handsome Brook Farm, LLC v. Humane Farm Animal Care, Inc., 700 Fed. Appx. 251, 264 (4th Cir. 2017).
The government cannot require Atlas to obtain a license in order to speak—a license aggressively reviewed for content under rules mandating some statements and forbidding others, as interpreted by the licensing authority—and then shutter the licensing office indefinitely. No one knows when the TTB will reopen. That question that can only be answered by reference to the stubbornness of the President and Congressional leaders in sticking to their respective positions regarding the construction of a wall on the Mexican border. The delay is not "specified," nor has it been "brief." If TTB opens tomorrow, Atlas would still have to wait perhaps another three weeks for a decision—or more, considering what would be TTB's substantial backlog. The commercial aspects of Atlas's speech should make no difference in the analysis. "Although the interests of the commercial speech at issue here may not equate with those of political speech, we agree that the special protections of the First Amendment justified the exercise of equitable jurisdiction in this case." Kitty's East, 905 F.2d at 1371 (footnote omitted). The Court cannot force the TTB to review Atlas's label, but it should lift the prior restraint....
Earlier today, the Supreme Court heard an unusual second oral argument (transcript here) in Knick v. Township of Scott, an important Takings Clause property rights case. The Court previously heard argument in the case back in October, during the week when Justice Brett Kavanaugh had not yet been confirmed by the Senate, due to the ongoing investigation into allegations of possible sexual assault against him. When the Court ordered a reargument in November, Many observers speculated that it was because the eight justices present for the original argument were equally divided in a 4-4 split on the case, and they needed Kavanaugh to participate in order to break the tie. Another possibility (not necessarily mutually exclusive with the first) is that the Court wanted greater consideration of various issues that had not gotten much attention in the initial argument. Prominent among those was the federal government's strange "Klingon forehead" argument, which in some respects could split the difference between the two sides in the case.
To briefly recap, the main point at issue in Knick is whether the Court should overrule or limit Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that makes it virtually impossible to bring many types of takings cases in federal court. Under Williamson County, a property owner who contends that the government has taken his property and therefores owes "just compensation" under the Fifth Amendment, cannot file a case in federal court until he or she has first secured a "final decision" from the relevant state regulatory agency and has "exhausted" all possible remedies in state court. Even then, it is still often impossible to bring a federal claim, because various procedural rules preclude federal courts from reviewing final decisions in cases that were initially brought in state court. I discussed the issues at stake in the case in a Wall Street Journal op ed, and more fully here, and in an amicus brief I coauthored on behalf of the Cato Institute, the National Federation of Independent Business, the Southeastern Legal Foundation, the Beacon Center of Tennessee, the Reason Foundation (which publishes Reason magazine and this website), and myself.
Because of the significant likelihood of a 4-4 split after the initial argument, all expert observers' eyes were on Justice Kavanaugh today, as he might be the decisive swing vote. Kavanaugh asked only a few questions and certainly did not decisively tip his hand. But the few things he did say were not particularly comforting for the property owner's side.
In one exchange, he queried Solicitor General Noel Francisco on the idea that "An implicit premise of your argument and Petitioner's argument for overruling Williamson County, I think, is that the state courts aren't as good as the federal courts. Why is that in your view?"
In a later question directed at counsel for the Township of Scott, Kavanaugh hinted his possible recognition of some of this, when he asked her whether "the municipalities get a home court advantage in state court as compared to federal court." She, of course, answered no.
Still, Kavanaugh's framing of the issue is a bit troubling from the property owners' point of view, as it implies that the case for overruling Williamson County should only prevail if state courts generally "aren't as good as the federal courts," as opposed to merely that the latter are a necessary backstop for the former, as with other constitutional rights.
Justice Neil Gorsuch made the latter point well, when he emphasized that "that there is no exhaustion requirement in [Section] 1983 [the federal statute that allows litigants to bring federal constitutional claims against state governments in federal court]? Now maybe there should be. And if there is, maybe there should be for Fourth Amendment claims and Fourteenth Amendment claims too because there are wonderful state courts capable of adjudicating the deprivation of Fourth Amendment rights, capable of adjudicating fully and fairly. I think we'd all agree the deprivation of Fourteenth Amendment rights. But we don't generally require that."
In other parts of the oral argument, Kavanaugh was virtually the only justice to show significant interest in the Solicitor General's strange "Klingon forehead" argument, under which Williamson County could be reinterpreted to bar bringing takings claims in federal court under Section 1983, but still allow them, in some cases, to be brought under 28 U.S.C. § 1331, which gives federal courts jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States." The problem with this theory is that Williamson County did not actually distinguish between these two statutes, and that the same logic under which its reasoning precludes bringing regulatory takings claims under Section 1983 also applies to Section 1331. Section 1331 gives federal courts jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States." The whole point of Williamson County is that there is no action "arising under" the Takings Clause of the Fifth Amendment, until the government has made a final decision refusing to pay compensation, and there is no sufficiently definitive refusal until the property owner has "exhausted" all possible state court remedies. For reasons I summarized here, here and in my amicus brief in Knick, I think this theory is seriously flawed. But if it's correct, it covers Section 1331 cases no less than Section 1983 cases.
At one point during the argument, Kavanaugh also appeared to suggest that the case turned on "statutory stare decisis" about the meaning of Section 1983 and noted that overturning a statutory precedent requires a higher burden of proof than overturning a constitutional decision. This part of the oral argument was very fragmented (Kavanaugh's remarks were interrupted, at times), so it's far from clear exactly what his view is. But if Williamson County is framed as a purely statutory decision, it is indeed less likely that the Court will overrule it.
Relative to the initial argument, not only Kavanaugh, but also many of the other justices focused much more on Section 1983 and much less on the Takings Clause and the Constitution. It's possible that's because the justices already explored the latter issues at some length in the earlier argument. But if they are indeed now viewing this is a primarily a statutory issue, that is not a good sign for the property owners.
Neil Gorsuch, however, did emphasize that "Williamson [County] purported to interpret the Constitution," not just Section 1983. Indeed, the interpretation of the latter is inevitably linked to the former. Section 1983 gives access to federal courts to litigants whom state or local governments have subjected to "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." If that does not cover takings cases like the one in Knick, ot can only be because there hasn't been a "deprivation" of constitutional rights because the state government has not yet made a final determination that they refuse to pay compensation. Thus, there is no real way to separate out the constitutional and statutory issues here.
Overall, I am somewhat less optimistic after today's argument than I was after the initial argument in October. If Kavanaugh ends up saving Williamson County by casting the decisive vote in a 5-4 decision, it will mean the retirement of Justice Anthony Kennedy was a bad break for property rights advocates, because Kennedy was one of four justices who joined a 2005 concurring opinion forcefully criticizing Williamson County and urging the Court to consider overruling it.
That said, a wide range of outcomes are still possible, and it is by no means clear which side Kavanaugh will ultimately come down on. The same is true of Justice Elena Kagan, who I suggested might be inclined to join with the conservative justices in overruling Williamson because she is unwilling to accept the "Catch 22" situation under which takings plaintiffs are required to first exhaust all possible state court remedies before they can get into federal court, but then that very action prevents them from getting into federal court later. She reiterated that concern today, though she also suggested there might be some way to address it without overruling Williamson County. As other justices pointed out in response, it is unlikely that the Catch 22 problem can actually be solved in any other way.
UPDATE: I should note that after studying the federal government's position in the case more carefully, I think it is actually more favorable to the property owners than I suggested was the case here and especially here. I may expand on that point in a future post, if time permits.
A recent study finds that the most extreme opponents of GMO food have the lowest levels of relevant scientific knowledge, but also tend to believe they know much more than they actually do. The Guardian has a helpful summary of the results:
The most extreme opponents of genetically modified foods know the least about science but believe they know the most, researchers have found.
The findings from public surveys in the US, France and Germany suggest that rather than being a barrier to the possession of strongly held views, ignorance of the matter at hand might better be described as a fuel.
"This is part and parcel of the psychology of extremism," said Philip Fernbach, a researcher at the University of Colorado and co-author of the 2017 book The Knowledge Illusion. "To maintain these strong counter-scientific consensus views, you kind of have to have a lack of knowledge."
Fernbach and others analysed surveys completed by nationally representative samples of the US, French and German public. Those who took part were asked about their attitudes to GM foods and given instructions on how to judge their understanding of the topic. Next, they completed a scientific literacy test. Among the statements the participants had to wrestle with were: "Ordinary tomatoes do not have genes, whereas genetically modified tomatoes do" (false), and "the oxygen we breathe comes from plants" (true).
The results from more than 2,500 respondents revealed the curious trend. "What we found is that as the extremity of opposition increased, objective knowledge went down, but self-assessed knowledge went up," Fernbach said.
The study itself is available here. As the authors point out, scientists overwhelmingly conclude that GMO foods are no more risky than "natural" ones, yet many in the general public continue to believe they should be severely restricted or even banned.
This is far from the first study to show widespread public ignorance about either GMO foods specifically or scientific and public policy issues, generally. For example, surveys conducted in the US in 2014-15 and 2016 found that some 80% of Americans say there should be mandatory labeling of foods containing DNA (despite the fact that DNA is the basic building block of all life on Earth, and nearly all our food contains it).
But that does not, by itself, explain why people who most oppose GMOs are not only the most likely to be ignorant, but also unusually confident about the extent of their knowledge. That has to do with bias, not simply ignorance. Studies repeatedly show that many people - especially those with strong views - are highly biased in their evaluation of political information, often acting as "political fans" cheering on their preferred party or ideology rather than evaluating information objectively. That is true of ordinary voters, activists, and even government officials. The most committed partisans and ideologues also tend to have the strongest biases, and thus are probably the most likely to overestimate the extent of their knowledge and understanding.
One possible solution to these sorts of problems is for voters to defer more to scientific experts, at least on technical issues such as the risks posed by GMO foods. Such deference may often be useful. But it is also often difficult to figure out when it is appropriate, and when not. Figuring out who is a real expert and where the limits of their expertise are may itself require considerable knowledge and insight. Moreover, the same flawed incentives that lead voters to make biased assessments of evidence may also cause them to dismiss the views of experts whose findings cut against the voters' own preconceptions.
In sum, we have good reason to be wary of the influence of public ignorance on government policy - especially when it comes to scientific issues. But there is also good reason for skepticism about the standard solutions usually proposed to fix that problem.
In two opinions issued today, federal district courts wrestled with the question of whether to give a national injunction. One judge did, one didn't. And their decisions offer a window into the current state of this question.
First, the U.S. District Court for the Northern District of California granted a preliminary injunction to thirteen states challenging certain rules promulgated by the Department of Health and Human Services. (These rules create a religious exemption and a moral exemption to the birth-control mandate under the Affordable Care Act.) The court declined to give a national injunction, and instead gave one that applied only within the thirteen plaintiff states. In the same case, the court had previously given a national preliminary injunction only to have it reversed by the Ninth Circuit, for the court's failure to justify the national scope.
The court did not offer an extensive discussion of the question. It made a passing reference to the possibility of "direct legal conflicts"--noting another district court's decision that a state lacked standing to bring a similar claim. But this is not a strong argument against national injunctions. The court was using "direct legal conflicts" in a very broad sense--encompassing different views of the law by different courts. Without national injunctions, that kind of conflict still happens (in fact, there would be more of it). More interesting is that the court, prodded by the Ninth Circuit's reversal, seemed to treat the national injunction as unusual and exceptional. The case didn't meet "the high threshold set by the Ninth Circuit for a nationwide injunction."
Second, the U.S. District Court for the Eastern District of Pennsylvania granted a preliminary injunction to two states challenging the same rules. And this court gave a national preliminary injunction--the injunction prohibits the federal government from implementing the rules with regard to anyone, not just with regard to the plaintiffs or to people within the plaintiff states. In effect, the Eastern District of Pennsylvania's decision to give a national injunction means the restraint shown by the Northern District of California has no effect (unless, of course, the Eastern District of Pennsylvania decision is stayed or reversed on appeal).
More interesting is the opinion the court gave defending the national injunction. It is well written, and for supporters of national injunctions it advances the strongest legal and precedential case for them. That is because it tries to show how the national injunction is an outworking of several lines of established doctrinal authority--the court doesn't lapse into the "someone is wrong on the internet" argument for the national injunction (someone, somewhere, is doing something unconstitutional and It Must Be Stopped).
Nevertheless, readers who have followed the national injunction debate will not be surprised that I think there are holes in the court's argument. Here are a few:
The court very quickly, one might almost say blithely, says "it is well established that a district court sitting in equity has the authority to enter a nation-wide injunction." After this assertion, the court treats the question of giving a national injunction as strictly a matter of prudence and balancing. For this remarkable proposition, the court cites three cases, and the most interesting and oldest is a U.S. Supreme Court opinion from 1932. But on inspection the case has no bearing. It concerns contempt enforcement for an injunction that prohibited the defendant from infringing the plaintiff's patent anywhere in the country. But of course that is not controversial. Since the 1740s it has never been seriously questioned that a court of equity could control the defendant's conduct toward the plaintiff anywhere. What is at issue in the national injunction debate is whether a court of equity can control the defendant's conduct toward anyone in the country--including nonparties.
The court takes a very aggressive view of "complete relief." In particular, the court seems to think that it has to, with its injunction, prevent any harm to the plaintiffs. And then, in a particularly strong part of the opinion, the court works through the practical difficulties involved in granting a narrower injunction. Nevertheless, there are several unstated and unexamined premises for the court's argument on this point. One is that equity has to prevent all harm to the plaintiff. That has never been true of equity, and instead there are a host of equitable doctrines that provide reasons for stopping short of "complete relief" because of the burden on the court, the conduct of the parties, and principles of constitutional strucuture. Another unstated and unexamined premise is that the point of a preliminary injunction is to prevent the plaintiff from suffering injury--an alternative paradigm is that the point of a preliminary injunction is to preserve the court's power to decide the case. And yet another premise, but one the court does address in another part of the opinion, involves state standing.
The court pushes hard the APA argument and D.C. Circuit precedents. In a footnote the court even toys with the idea that national injunctions are required in APA cases. But the APA argument for the national injunction is strong on the basis of fairly recent lower-court precedent, and it's much weaker as a matter of first principles. To my knowledge, no decision basing a national injunction on the APA has taken seriously the counterarguments. (For a roundup of sources, including my arguments, skepticism by Chris Walker, and analysis by Ron Levin, see this post.)
Taken together, the two opinions--one opting for an injunction that applies in the territory of the plaintiff states, and the other protecting the plaintiff states with a national injunction--reveal one of the deep questions underlying the surge in national injunctions. What interests do states have standing to vindicate in the courts? Are they representing their own pecuniary and proprietary interests? Their own sovereign and dignitary interests? The interests of their people? (Side note: consider a possibly parallel question of the constitutional interests that corporations may vindicate, as explored here by Adam Winkler--that these might be conceptually parallel tends to be missed, and I haven't seen any "States aren't people" bumper stickers.) The idea of state standing to bring all these challenges--and I mean the ones against the Obama administration and the ones against the Trump administration, what's good for the Republican goose is good for the Democratic gander--is itself in tension with traditional equitable practice. It's no accident that Massachusetts v. Mellon and Frothingham v. Mellon were companion cases. In the long run, they may live or die together.
The Alabama Monument Protection Act, enacted in 2017, basically barred local governments from removing and otherwise interfering with (mainly) Confederate war memorials. Last night, an Alabama state judge struck down the statute, on the grounds that it violated the local governments' federal rights of free speech and due process. (Thanks to reader Ramer for the pointer.)
I think the judge was pretty clearly wrong, and I expect the decision to be reversed on appeal, at least as to the federal constitutional claims. Cities and counties have no federal constitutional rights against the states that created them.
"Political subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities." They are instead "subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions." State political subdivisions are "merely ... department[s] of the State, and the State may withhold, grant or withdraw powers and privileges as it sees fit." Trenton v. N.J. (1923)....
[Any] analogy [between private corporations, which have constitutional rights against state governments, and municipal corporations] is misguided. A private corporation is subject to the government's legal authority to regulate its conduct. A political subdivision, on the other hand, is a subordinate unit of government created by the State to carry out delegated governmental functions. A private corporation enjoys constitutional protections, but a political subdivision, "created by a state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator." Williams v. Mayor of Baltimore (1933); Trenton v. N.J. (municipality, as successor to a private water company, does not enjoy against the State the same constitutional rights as the water company: "The relations existing between the State and the water company were not the same as those between the State and the City").
So if Alabama sought to require private landowners, whether individuals, nonprofit corporations, or for-profit corporations, to mantain existing monuments (Confederate or otherwise) on their property, that likely would violate the landowners' First Amendment rights. But just as the Alabama Legislature has the power -- at least from the perspective of the federal Constitution -- to restrict speech by Alabama state agencies, so it has the power to restrict speech by Alabama city and county entities, which are treated under the federal Constitution as a form of state agency.
And this is so regardless of the references in various Supreme Court decisions to the government's power to engage in "government speech," e.g., in choosing which monuments to put up (Pleasant Grove City v. Summum (2009)) or what designs to place on license plates (Walker v. Sons of Confederate Veterans (2015)). That doctrine states that the First Amendment doesn't stop governments (including local ones) from discriminating based on viewpoint in selecting their own speech. But it doesn't protect them from rules imposed by their higher-ups in the state government structure. So a state may ban cities from putting up Confederate monuments, or may ban them from removing such monuments, without violating the cities' First Amendment rights.
Now state constitutions might, if the drafters so chose, give cities or counties or both some autonomy with respect to the state legislature. Indeed, they may give branches of the state government some such autonomy. But that's a matter of state constitutional law, not of cities' or counties' First Amendment rights. (The decision doesn't seem to discuss any state constitutional claims, but I'm not sure whether some might have been brought or might still be raised on appeal.)
Finally, note that there's a much more serious, and unsettled, question whether the federal government may restrict state and local entities' rights. But that's because state governments are indeed separate sovereigns, and not just "political subdivision[s]" "created by [the federal government] for the better ordering of government."
S1413, introduced yesterday by Sen. Kevin Parker (the former state Senate minority whip, before the Democrats took over the majority in the last election), would require that anyone who wants to get a handgun, rifle, or shotgun
consent to have his or her social media accounts reviewed and investigated pursuant to subdivision four of this section ....
Under subdivision 4, "[i]n order to ascertain whether any social media account" of the would-be buyer "presents any good cause for the denial" of the right to buy a gun, the government shall review the would-be buyer's "social media accounts for the previous three years" and
investigate [the would-be buyer's] posts related to
(i) excessive discriminatory content; or
(ii) content that is likely to incite or produce a violent action in or towards others.
For the purposes of this subdivision, "social media accounts" shall only include Facebook, Youtube, Gab, Twitter and Instagram and "excessive" shall mean more than one hundred posts.
"Discriminatory content" isn't defined, here or elsewhere, but presumably refers to speech that expresses negative views about various groups (or what else would it mean?). Presumably more than 100 posts in 3 years that criticize Muslims, or oppose bans on discrimination based on transgender status, or contain sexist jokes would qualify. What about "discriminatory content" towards Republicans? Towards Israel? Not clear.
It's also not clear what qualifies as "content that is likely to incite or produce a violent action in or towards others" (for which there's no 100-post "excessiveness" standard). Does this have to be a 51% likelihood, a threshold which would almost never be satisfied? Some possibility, which could be satisfied for a vast range of rhetoric? Again, not clear.
It is clear, of course, that such speech is generally constitutionally protected, whether it's "discriminatory content" ("excessive" or not) or speech that is "likely to incite" "violent action"; recall that the very narrow incitement exception to the First Amendment is satisfied only if the speech is (1) intended to produce (2) imminent illegal conduct, and (3) likely to produce such imminent legal conduct -- item (ii) above doesn't include the intent or imminence requirements.
But remember: No-one is trying to take away your guns, or your freedom of speech.
The Supreme Court has issued seven signed opinions in argued cases thus far this term. Six of these opinions were unanimous. The seventh, issued this morning, was a 5-4 decision, but not along the lines many would expect.
Justice Thomas wrote the opinion for the Court in Stokeling v United States, holding that a robbery offense that requires the defendant to overcome a victim's resistance is an offense that requires the use of "physical force," and can thus qualify as a "violent felony" under the Armed Career Criminal Act (ACCA). He was joined by Justices Breyer, Alito, Gorsuch and Kavanaugh. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan, and the Chief Justice.
That Justice Breyer joined the majority in a criminal law case like this is not particularly surprising. He has the occasional tendency to cross over in some criminal law cases. That the Chief Justice joined the dissent, however, is a bit more surprising.
Not only is this the first divided opinion of the term, it is also the first "second" opinion of the term. That is, Justice Thomas is the first justice to author a second opinion in an argued case. Justices Ginsburg, Kavanaugh, Gorsuch, and Breyer have authored one signed majority opinion each thus far this term, as has the Chief Justice. Justice Sotomayor is also the first to author a dissent. Justice Alito and Kagan have yet to issue an opinion in an argued case. [Update: I neglected to note that Justice Ginsburg has also written a concurrence, in addition to writing the first opinion of the term. So she has authored two opinions in argued cases, but only one for the Court.]
[Note that the above refers to "signed" opinions. This is because the Court has issued two per curiam opinions thus far this term. Whichever justice was responsible for those opinions, they were not signed, so cannot be credited to any particular chambers. The above also does not account for opinions respecting orders, of which there have been several thus far this term, including eight by Justice Sotomayor and three by Justice Gorsuch.]
Any well-published law professor can recite a litany of complaints about law reviews, the generally student-edited journals where most legal scholarship is published. For example, the students require citations for opinions, or for well-known facts; students get to select the articles they publish, but don't have the expertise to do so; and the bluebook citation system most law reviews follow is much too cumbersome, and requires way too many explantory parentheticals.
One advantage law reviews do have, however, is that the editors are meticulous about checking footnotes to ensure that citations actually support the authors' contentions, and that quotations are accurate. This has its limitations; a Holocaust denier citing to books by Holocaust deniers would pass such screening. But it does at least prevent authors from either just making things up or being incredibly sloppy, and then sticking in footnotes to make the invention or sloppiness look scholarly.
I've been involved off and on over the past year and a half in the ongoing debate over Nancy MacLean's book Democracy in Chains. My interest in the book was piqued when some of my Facebook friends were criticizing it for a variety of scholarly sins. I got hold of the book, and immediately turned to MacLean's brief discussion of my law school and its former dean, Henry Manne. I found that what MacLean wrote did not mesh with the facts. I thought perhaps that she was led astray by sources she thought to be reliable, so I checked her footnotes. Nope. She just made things up. For example, she asserted that Manne only hired white male faculty, which was not remotely true. Not only did the source she cited in the relevant footnote not assert this, it specifically mentioned my colleague Bruce Kobayashi, who has a very common Japanese surname and is in fact of Japanese descent.
MacLean is not the only recent perpetrator. Quinn Slobodian has emerged as leading historian and critic of the free-market oriented "neoliberal" (whatever that means) economists who emerged as leading critics of economic statism after World War II. Here's what economic historian Phil Magness found after reviewing a recent article by Slobodian on economist Ludwig von Mises:
Professor Slobodian has 93 footnotes in his article. Over 50 of them reference Mises's writings or correspondence. Looking them up, I found many instances in which the page reference to a paraphrase of a passage or a quote in one of Mises's works was not to be found where Professor Slobodian indicated it to be.
In some instances, this was not simply being off a page or two; the page referenced turned out to be in a portion of one of Mises's works that had nothing to do with the theme or idea that Professor Slobodian was referring to in the text of his own article. Hence, the paraphrase or quote literally had to be taken on good faith as being accurate or even there in one of Mises's writings.
In addition, there are instances in which Professor Slobodian asserts or implies views or states of mind held by Mises at some point in time. But the footnoted reference sometimes refers to some other scholar's work that when looked up did not refer to or imply anything about Ludwig von Mises.
One might be inclined to be more generous about these errors if they always didn't point in the same direction, to make historical figures that the authors object to on ideological grounds look bad. As in the case with MacLean, one suspects that some historians first construct their narrative, then look for citations to support it. If citations don't support the preconceived narrative, they abandon sound scholarly citation practices rather than abandoning the narrative.
Again, law reviews are far from perfect. But if you read a law review article, at least one published in a reasonably respectable journal, you can at least be pretty confident that the assertions made by the author are supported by the sources the author cites. One might think that we could trust professional historians to be meticulous about their sources without having third parties review them. Unfortunately, we cannot.